Bradford Furniture Co.

CONCORD FURNITURE INDUSTRIES INC. Concord Furniture Industries Inc., d/b/a Bradford Furniture Company and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 82. Cases I-CA-14058 and I - RC- 15504 April 2. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On November 9, 1978. Administrative Law Judge Walter H. Maloney. Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings.' findings,'2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. I. Respondent excepts to the Administrative Law Judge's finding that John Williams and Douglas Gor- anson were discharged in violation of Section 8(a)(3) of the Act and contends that (1) it was economically justified in laying off two employees and (2) it chose to lay off Williams and Goranson on January 4, 1978, because they were the least senior employees in their particular job categories. While we recognize the fact that Respondent's financial situation as of January I, 1978, justified laying off several employees. 4 we none- i Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We note and hereby correct the Administrative Law Judge's inadvertent reference to "Ferreira" rather than "Lupus" in the third paragraph of sec. II,C, 1.1 of his Decision. 3In finding that Charlie Lupus was a supervisor, the Administrative Law Judge noted that he had hired employee Douglas Goranson to a position in Respondent's warehouse. Charlie Lupus initially interviewed Goranson for the warehouse job, showed him around the warehouse, and explained to him his duties: however, it is not clear on the record that Lupus made the final decision to hire Goranson. Nevertheless, this uncertainty in no way affects the finding that Lupus was a supervisor, since the record is clear that Lupus assigned work using independent judgment, granted employees time off. ap- proved employees' overtime, and fired both Williams and Goranson. In ad- dition, Lupus was a salaried employee, received substantially more money than the other warehouse employees, did not receive overtime as did the other employees. had his own office in the warehouse, and was introduced to the warehouse employ ees as the warehouse manager. Finally. if Lupus were not a supervisor, there would he no supervisor for the 9 to 15 warehouse employees. The parties stipulated that as of January 1, 1978, Respondent's net worth was approximately zero and that Respondent had a bona fide economic theless agree with the Administrative Law Judge that Williams and Goranson were discriminatorily laid off and that the purported reasons for their layoff were pretextual.5 In affirming the Administrative Law Judge's finding, however, we also note the following facts, which he neglected to discuss. Subsequent to the layoff of Williams and Goran- son, but prior to the hearing, Respondent submitted to the Board an eligibility list identifying six different warehouse job categories-warehouseman, driver, driver/helper, helper, shipper/receiver, and finisher. Williams was listed as a "helper" and Goranson was listed as a "driver." At the hearing, Respondent con- tended, in accordance with its list, that these six clas- sifications were used in the warehouse and that Wil- liams was laid off as the least senior helper (and in fact the only helper) and Goranson was laid off as the least senior driver. The record reveals, however, that Respondent created these six categories in an attempt to justify laying off Williams and Goranson and that there are, in fact, only two or possibly three ware- house job classifications. In this connection Respon- dent's president testified, contrary to the list, that there are actually only two distinct job categories in the warehouse-drivers and finishers. Respondent's president also identified all of the warehouse employ- ees employed as of January 4, 1978 (the time of the layoff), as either "helpers," "drivers," or "finishers," again contrary to the eligibility list. Moreover, he spe- cifically identified three employees as helpers even though, according to the list, only Williams was a helper.6 Furthermore, the testimony clearly estab- lishes that all of the warehouse employees, with the exception of the finishers, perform overlapping func- tions and are not treated as holding distinct job posi- tions. Thus, the helpers (or driver/helpers) drive trucks as well as work in the warehouse, and drivers work in the warehouse as well as drive trucks. Clearly, then, not only do the "six" warehouse job categories Respondent listed not exist, but Respon- dent itself recognizes only two (drivers and finishers) Justification for laying off two employees. The Administrative Law Judge noted, however, that the stipulation did not state that Respondent had a bona fide economic justification for laying off two employees in the ware- house, and the record reveals that Respondent also laid off or discharged several employees in various parts of its organization at or about the time Williams and D. Goranson were terminated. I Respondent relies on Colerti's Furniture. Inc., 550 F.2d 1292 (Ist Cir 1977) and Hubbard Regional Hospital v. N,LRB.. 579 F.2d 1251 (Ist Cir 1978), and attempts to characterize this case as one involving mixed motiva- tion discharges. The Administrative Law Judge. with whom we agree. did not consider this a mixed motivation case. Rather, he found that the dis- charges were strictly pretextual in nature Respondent's reliance on mixed motivations is therefore misplaced. 6 Robert Sawyer and William Cobligh were identified as helpers along with Williams: Alfred l.upus, Henry Glenn. Peter Sciascia. and Robert McNeil were identified as drivers along with D. Goranson On the eligibility list, Cobligh and Sawyer were listed as "warehousemen." Sciascia was listed as a "driver/helper.' 241 NLRB No. 85 643 I) t('ISIONS OF NATIONAL LABOR RELATIONS BOARD or possibly three (drivers. helpers, and finishers) job classifica tions. Both Respondent's president and its secretary/trea- surer also testified that, in determining seniority sta- tus. an employee's length of service with American Homestead, Inc., which was purchased by Respon- dent, is considered along with the employee's tenure with Respondent. Williams had worked for American Homestead. Inc.. for about 6 years before becoming an employee of Respondent in July 1977. so that at the time of his layoff in January 1978 he had about 6- 1/2 years' seniority. One of the other warehouse em- ployees also identified by Respondent's president as a helper, Cobligh, had only 4-1/2 years' seniority. If we accept Respondent's explanation as to how it decided who to lay off- -that is, the least senior employee in one job category-then Cobligh should have been laid off. not Williams. Not only, however, was this not the case, but both Respondent's president and its secretary/treasurer admitted that they did not bother to find out how many years Williams worked for American Homestead, Inc., while admitting those years should have been counted in determining his seniority status. The foregoing, in our opinion, con- clusively demonstrates that Respondent's stated rea- sons for laying off Williams and Goranson were pre- textual. 2. This case was consolidated for hearing with Case 12 RC- 15504 to consider challenges and objec- tions. The Administrative Law Judge inadvertently failed to rule on the Petitioner's objections to the elec- tion. The Petitioner objected to the election on the ground that Respondent discriminatorily laid off Wil- liams and Goranson, which the Administrative Law Judge found violated Section 8(a)(3) and (I). Since we agree with that finding, we will sustain the Petition- er's objection. Although the objection alleged only the discharges as objectionable conduct, the Board will consider other objectionable conduct discovered during the course of the investigation even if it is not included in the objections.7 The Administrative Law Judge found that Respondent also violated Section 8(a)(l) by coer- cively interrogating employees concerning their union activities, promising employees benefits in order to persuade them to reject unionization, telling employ- ees that other employees were going to be discharged because of their union activities, and telling employ- ees that they were going to be discharged because of their own union activity. "Conduct violative of Sec- tion 8(a)(1) is, afortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election."8 Accordingly, we find that Respondent's fDqlvnn DTre & Rubhber (,,. 234 NLRB 504 (1978). D ual-7e Optical ('oreplant, In, 137 NL.RB 1782. 1786 (1962). conduct in violation of Section 8(a)( i) was also objec- tionable and warrants setting aside the election. 3. The Administrative Law Judge properly over- ruled the challenges to the two ballots and directed the Regional Director to open and count such ballots and prepare a revised tally. le neglected, however, to set the election aside and order a second election in the event the Petitioner does not receive a majority of the votes cast according to the revised tally. We shall therefore order the election of January 12, 1978, set aside and direct the Regional Director to hold a sec- ond election as early as possible thereafter if; after the tally of ballots is revised, the Petitioner does not re- ceive a majority of the votes cast. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low. and hereby orders that the Respondent, Concord Furniture Industries Inc., d/b/a Bradford Furniture Company, West Concord, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. The Board modifies the rec- ommended Order by adding the following to the next-to-last paragraph of the recommended Order: If the Petitioner receives a majority of the votes cast, the Regional Director shall issue a certifica- tion of representative. In the event that the Peti- tioner does not receive a majority of the votes cast, according to the revised tally, it is further ordered that the election held on January 12, 1978. among the warehouse employees of the Respondent be set aside and that the Regional Director be directed to conduct a second election at such time as he deems that circumstances per- mit the free choice of a bargaining representa- tive. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concern- ing their union activities or union sentiments. WE WILL NOT promise employees benefits if they reject unionization. WE WILL. NOT inform employees that they or an)y other employees are being discharged or will be discharged because of their union activities. 644 CONCORD FRNITtIRE INDUSTRIES INC'. Wi: WIll. NOI. b discharge, by layoff, or in any other manner, discriminate against employ- ees because of their membership in or activities on behalf of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Local 82. or any other labor organiza- tion. All of our employees are free to become or to remain members of that union or of any other union. WE WIl.l. NOI in any other manner interfere with, restrain. or coerce employees in the exer- cise of rights guaranteed to them by Section 7 of the National Labor Relations Act. These rights include the right to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to en- gage in concerted activities for their mutual aid and protection. WE wILt. offer full and immediate reinstate- ment to Douglas Goranson and to John Wil- liams to their former jobs or, if those jobs no longer exist, to substantially equivalent positions. without prejudice to their seniority or other rights or privileges previously enjoyed, and WE w tlti make them whole for any loss of pay or benefits which they have suffered because of the discrimination practiced against them, with in- terest. CONCORD FURNITURE INDUSTRIES INC., D/B/A BRADFORD FURNITURE COMPANY DECISION SIAItMI:NI OF rilF CASE FINDIN(s OF FA(CT WAI.TER H. MALONEY, JR.. Administrative Law Judge. This case came on for hearing before me at Boston. Massa- chusetts, upon a consolidated unfair labor practice com- plaint' issued by the Regional Director for Region I., which alleges that the Respondent, Concord Furniture Industries. I The principal docket entries in this case are as follows: Charge filed by International Brotherhood of Teamsters. Chauffeurs, Helpers. and Ware- housemen of America, Local 82 (herein called Union). on January 19. 1978: complaint issued by the Regional Director for Region I on March 9. 1978: Respondent's answer filed March 20, 1978: hearing held in Boston. Massa- chusetts. on August 23 and 24. 1978; and briefs filed by the General Counsel and the Respondent with me on October 3. 1978. The principal docket en- tries in Case I RC' 15504 are as follows Petition filed n December 12, 1977. by the Union. seeking to represent a unit of the Respondent's full-time and regular part-time warehousemen, drivers. helpers. and related employ- ees. "Stip" election agreement approved by the Acting Regional Director on December 29, 1977: representation election held on January 12. 1978. result- ing in our votes cast for the Union. five votes cast against the Union. and two objections to the nion. fise votes cast against the Union. and two objections to the conduct of the election filed hb the Utnion on Januar' 19. 1978: Report on Objections and Challenges issued by the Regional Director ;fr Region I on Febhruar 28. 1978 Inc., d/b/a Bradford Furniture Company., violated Section 8(a)( ) and (3) of the Act. More particularly, the complaint alleges that the Respondent herein unlawfully interrogated its employees, threatened to discharge employees because of union activities, created among employees an impression of company surveillance of their union activities, and threatened to impose upon employees more onerous work- ing conditions because of heir union sympathies and activi- ties. The complaint also alleges that the Respondent dis- criminatorily discharged Douglas Goranson and John Williams. The Respondent denies the commission of in- dependent violations of Section 8(a)( I), asserting that Philip Charles Lupus. to whom many of the allegedly illegal state- ments were attributed, was not a supervisor within the meaning of the Act and that Williams and Goranson were laid off in order of seniority during an economically moti- vated retrenchment. Upon these contentions the issues herein were drawn. I. lHE UNFAIR ABOR PRA('TICES ALI.(iED Respondent presently operates retail furniture stores at West Concord. Natick, and Pembroke, Massachusetts. The Natick store was acquired July' I, 1977, from American Homestead, Inc.. which had operated a furniture store at that location for several years. Respondent also maintains a warehouse and delivery facility at West Concord in con- junction with its store and principal office. This facility serves all three retail outlets and is the bargaining unit in which the dispute in this case arose. Respondent's contract to purchase the American Home- stead store required it to offer employment, at substantially the same salaries and wage rates paid by American Home- stead, to all employees who were employed at the store and warehouse at the time of the sale. Four persons-Philip Charles Lupus (who goes by the name Charlie), his brother Alfred Lupus, John Williams, and Robert McNeil were hired by the Respondent. They were all transferred to the West Concord warehouse, at which place the Respondent consolidated all of its finishing, warehousing. and delivery functions. Charlie Lupus, whose supervisory function was sharply disputed in this proceeding, was the General Manager of the American Homestead store in Natick. At the time of the purchase. Respondent's. president. Anthony Ferreira told Charlie Lupus that his functions at West Concord would be considerably different than they had been in Natick. Respondent concedes that from July 1, 1977, until he resigned in February 1978 Charlie Lupus was a leadman in the warehouse at West Concord and that he was respon- I Respondent admits, and I find. that it is a Massachusetts corporation which maintains its principal place of business in West Concord, Massachu- setts. At this and other locations within the State of Massachusetts. the Respondent is engaged in the retail sale and delivery of furniture. In the course and conduct of this business. the Respondent does an annual gross business in excess of S 500,000 and annually ships from its West Concord, Massachusetts, store and warehouse directly to points and places located outside the Commonwealth of Massachusetts goods and merchandise valued in excess of $5(0.000 Accordingly. the Respondent is an employer engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. The Union is a labor organization within the meaning of the Act. Errors in the transcript have been noted and corrected. 645 I)Cl(ISIONS OF NATIONAL ILABOR RELATIONS BOARD sible for the overall direction of merchandise and personnel in the warehouse "within a prescribed situation." 'The consolidation of the American Homestead and Bradford Furniture warehouse and delivery operations caused considerable difficulty in the summer and early fall, but things began running more smoothly in the late fall when the Respondent's overall business began to drop and its warehouse and delivery operations tapered off. One rea- son Charlie Lupus was placed in charge of the warehouse was that he was familiar with American Homestead opera- tions and customers and could readily assist in servicing these customers from his own memory. This was of consid- erable importance. since American Homestead's books and records were in disarray and were often quite inadequate to inform strangers to the American Homestead operation what needed to be done with respect to a particular ac- count. During its peak operation in the fall, the Respondent employed about 16 persons, including some part-time em- ployees, in the warehouse. By January 4. 1978. a critical date in this proceeding, all of its part-time employees were gone, and a total of' II persons, including Charlie Lupus, remained in the bargaining unit. Discriminatee John "Chip" Williams was brought over from American Homestead. He was employed first as a finisher's helper or apprentice and then as a driver's helper. Williams had been an employee at American Homestead for about 6 years, with a break in service during which he sold life insurance. Discriminatee Douglas Goranson was hired as a driver and helper in September 1977. His brother, Richard Goranson, had worked for the Respondent in pre- vious years in the skilled position as a finisher. Richard Goranson returned to work for the Respondent in this posi- tion about the same time his brother started to work as a driver and helper. In late November or early December 1977, in response to dissatisfaction regarding overtime and other matters, Wil- liams. D. Goranson. McNeil, and A. Lupus decided to or- ganize the warehouse employees. After meeting at a local cafe. they all drove to the Union's office in Quincy, Massa- chusetts, and obtained designation cards. All of them signed cards and started to solicit signatures from other warehouse employees. About December 9, 1977, Williams took advantage of a day off to go back to Quincy and turn in the cards at the union office. On December 9, the Union's president and its secretary-treasurer wrote a joint letter to Ferreira, stating that a majority of the Respon- dent's drivers, warehousemen, helpers. shippers. receivers. finishers, and repairmen had signed cards. They asked for recognition and requested to meet with Ferreira for the pur- pose of negotiating a contract. On December 12. 1977, the Union followed up this letter by filing the representation petition in Case I -RC 15504. An election was held pursu- ant to a "stip" agreement on January 12. 1978. I credit Charlie Lupus' testimony that early in December 1977 he learned about the existence of the union drive from Ferreira, who told him that the employees had signed cards or papers and were trying to organize. Charlie Lupus ex- pressed unhappiness that warehouse employees would do something like that behind his back without telling him. Ferreira informed him that some of the employees who had signed cards asked to get them back. In the course of a later discussion about the Union. Ferreira told Charlie Lupus that he would be eligible to vote in the forthcoming elec- tion.4 He said that there would be five votes for the Union and five against it, and that Charlie Lupus could break the tie. In yet another conversation between Ferreira and Char- lie Lupus, Ferreira informed Charlie Lupus that Williams had gone to see someone on his day off about getting cards and had brought them into the plant. Charlie Lupus ex- pressed surprise and disbelief that Williams would be the leader of such an effort. Hie suggested to Ferreira that Wil- liams was not the kind of person who would normally as- sume a leadership role and suggested that somebody else was in fact leading them on. Later on, Charlie Lupus changed his opinion about Williams. When Ferreira stated to him that "Chip" Williams was the employee who started the organizing drive and that Williams was a troublemaker, Charlie Lupus replied. " don't want trouble working for me. Let's get rid of him." During this period of time, Charlie Lupus was encounter- ing trouble in another form from two Bradford employees who were already working in the Respondent's warehouse when he moved to West Concord from Natick. Drivers Pe- ter Sciascia and Henry Glenn repeatedly refused to take orders from Charlie Lupus. On some occasions they spoke insubordinately to him. Because they were long-time em- ployees at Bradford. they had established a relationship with Ferreira which antedated Charlie Lupus' employment, so they felt that they, rather than Charlie Lupus, would find backing in the front office in the event of a confrontation. They ultimately proved to be correct. On more than one occasion, Charlie Lupus complained to Ferreira about their behavior, claiming specifically that Glenn was "milking the job." Ferreira said he would look into the situation and correct it, but no changes were brought about until Charlie Lupus quit sometime in February. He resigned because of the refusal by Ferreira to back him up in dealing with Sciascia. On one occasion Charlie Lupus compared both Sciascia and Glenn to Williams in a conversation he had with Ferreira. saying that while Williams was a trouble- maker, Glenn and Sciascia made worse trouble. Late in December 1977. Charlie Lupus and Williams held a conversation in the warehouse. Williams told Charlie Lupus that he heard that he was eligible to vote in the election and expressed the opinion to Charlie Lupus that he would "stab us in the back." Williams also told Charlie Lupus he thought the Company was trying to get rid of Charlie Lupus, to which the latter replied that he was going to vote for the Union but would deny that he did so. During this same period of time, Charlie Lupus had a conversation with Douglas Goranson. He expressed to Douglas Goranson the opinion that "we have a trouble- maker," referring to Sciascia. Douglas Goranson disagreed, reminding him that Sciascia had signed a union card. Char- lie Lupus persisted. saying, "You'd better keep an eye on him." Later Charlie Lupus told Douglas Goranson that he had tried to fire Sciascia but that Ferreira had told him to leave Sciascia alone because "Peter is helping us." In December 1977. Richard Goranson had a conversa- tion in Ferreira's office with Ferreira and Respondent's sec- 4 Charlie .upus' name was placed on the Ercelsior list, and he voted at the election without challenge. 646 CONCORD FURNITURE INDUSTRIES INC. retary-treasurer. Henry Greenberg. I credit Richard Goran- son's statement that Ferreira asked him during this conversation why he had signed a union card. to which question Richard Goranson gave an evasive reply. Ferreira went on to say that the Union could not offer him more than the Company could. He also told him that he thought that Richard Goranson had a good deal and that he and Greenberg could not understand why he would want "to do something like this." Richard Goranson answered that he would do what he thought was right. Late in December 1977. Richard Gorranson had a con- versation with Charlie Lupus, who told him that he thought the Company was going to let some people go. Richard Goranson said he hoped that it would not be he. Charlie Lupus said it would not be but that he thought it would be Williams because of Williams' union activities. On January 4. 1978, Douglas Goranson and Williams reported to work as usual. While they were loading a truck in preparation for making deliveries. Charlie Lupus in- structed them not to leave the premises without first check- ing with him. He did not give them permission to leave but instead assigned them to do some work around the ware- house. During that day, Ferreira told Charlie Lupus to fire both men. Charlie Lupus gave him an argument, saying that there were two others he preferred to let go in place of Williams and Douglas Goranson. Ferreira ended the argu- ment by stating that it was not up to Charlie Lupus to decide who was to be terminated. In the middle of the after- noon, Charlie Lupus saw Douglas Goranson and told him that he and Williams had been laid off. However, he as- sured Douglas Goranson that "as soon as this Union thing goes through" he and Williams would be the first to come back. It was Douglas Goranson who relayed the word to Williams that both of them had been laid off. On the following day, Ferreira and Greenberg spoke to the warehouse employees in the group. The, told them that the reason that Douglas Goranson and Williams had been laid off was poor business. Greenberg went on to say that they wished that outsiders would not be coming into the plant, noting that there had been a personal relationship between management and the employees in the past and such a relationship would be destroyed by unionization. The election took place on January 12. with an inconclusive result. Four votes were cast for the Union and five were cast against it. Douglas Goranson and Williams presented themselves at the polls to vote. Their challenged ballots are determinative of the results of that election. II. ANALYSIS AND ( ON(CI.USIONS A. The Supervisorv Status of Philip Charles Lupus Charlie Lupus was admittedly a supervisor for the American Heritage Company when he was hired by the Respondent at "the same wages and substantially equiv- alent fringe benefits . . . as presently paid." Ferreira told him that his duties would be somewhat different with the Respondent. as indeed they would have to be, since as gen- eral manager of American Heritage Charlie Lupus in effect ran the business. A meeting was held of incumbent Brad- ford Furniture warehouse employees and newly transferred American Heritage employees, at which Greenberg and Ferreira introduced Lupus. I credit Lupus' testimony that at this meeting the men were told that Lupus would be in charge of the warehouse and that if they had any problems they should "see Charlie." Charlie Lupus was a salaried employee and received no payment for working overtime. He earned $35 per week more than the next highest paid warehouse employee. Dur- ing the 7 months which elapsed while he was in charge of the warehouse, he supervised between 9 and 15 employees, depending on the month in question. I reject as fanciful the testimony of Ferreira that the warehouse operation "ran itself." This testimony also is at a variance with testimony offered by the Respondent that Charlie Lupus' services were badly needed to handle the transfer of furniture from the American Heritage warehouse to the Bradford Furni- ture warehouse and to handle service complaints arising out of the enterprise which the Respondent had just purchased. In fact, Charlie Lupus hired Douglas Goranson. After Douglas Goranson was on the payroll fir a day or two, he had a conversation with Ferreira about his wages and over- time payments but Douglas Goranson was already an em- ployee when this discussion occurred. It was Charlie Lupus who was assigned to discharge both Williams and Douglas Goranson. Charlie Lupus regularly assigned work to em- ployees, both in the delivery section of the warehouse and in the finishing section. I credit testimony to the effect that he had an office in the warehouse and that the office was regarded as his office, not just a gathering place for employ- ees generally or a clearinghouse for work assignments. Charlie Lupus was the regular channel of communication between the warehouse and Ferreira. who was and is the company president. Ferreira's responsibility extends to the supervision of three retail stores, the company office, and the warehouse, so he spent relatively little time in the ware- house except when Charlie Lupus was absent. Charlie Lu- pus granted time off to employees, granted employees days off to compensate for overtime worked, and had as his re- sponsibility the transmittal of employee timesheets to the front office each week. Charlie Lupus regularly repri- manded employees when necessary, although two employ- ees rejected or ignored his reprimands and found support for their actions with Ferreira. In light of these consider- ations, it is clear that Charlie Lupus was not merely a lead- man, as contended by the Respondent, but exercised the responsibility to hire employees, reprimand employees, and responsibly assign work to employees. Moreover, the Re- spondent's principal officers represented to warehouse em- ployees that Charlie Lupus was in charge of their activities. Accordingly, I conclude that at all times material herein Philip Charles Lupus was a supervisor within the meaning of Section 21 ) of the Act, for whose words and deeds the Respondent is vicariously responsible. I attach no significance to the fact that the Respondent placed the name of Charlie upus on the eligibility list for the representation election. This was a self-serving effort to enlarge the voting unit so that Charlie Lupus could vote to break an anticipated tie. I also attach no significance to the fact that the Union did not object to the inclusion. This also served the Union's election strategy. Charlie Lupus' dissatisfaction with the Respondent was well known to union adherents, so the Union could anticipate that he might sote in its fasor if he were allowed to cast a ballot. It would make no election sense at all to challenge a "ses" vote, even if it was coming from a supervi- sor. 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Independent Allegations of Conduct Violative of Section 8(a)(l) of the Act. (a) I credit Richard Goranson's testimony that he had a conversation in mid-December 1977 in the company office with Ferreira and Greenberg, in the course of which he was asked why he signed a union card. He gave an evasive re- ply. This interrogation, taking place in the locus of manage- rial authority, was made by and in the presence of the Com- pany's highest officials and was met with a less than candid answer. These factors indicate clearly that the interrogation was coercive in character and a violation of Section 8(a)(I) of the Act. (b) In the course of the same conversation. Ferreira told Richard Goranson that the Company could do more for him than the Union could. Such a statement amounts to a promise of benefit for Richard Goranson if he would reject unionism, and therefore violates Section 8(a)(1) of the Act. (c) At or about this same time, Charlie Lupus had a con- versation with Richard Goranson, in the course of which he told him that he thought that Williams might be discharged because of Williams' union activities. Such a statement has a distinct chilling effect on union activities of employees and amounts to interference with protected activities, if in- deed it is not in and of itself a threat. However character- ized, the statement violates Section 8(a)( ) of the Act. (d) When Charlie Lupus discharged Douglas Goranson. he told him that he and Williams would be reinstated "as soon as this Union thing goes through." Such a statement is, in effect, a notification to both employees that they had been fired for union activities and is an independent viola- tion of Section 8(a)(1) of the Act. I so find and conclude. (e) The General Counsel contends that the Respondent violated Section 8(a)(l) when, in January 1978, Ferreira spoke with Richard Goranson while the latter was doing some upholstery work and told him that "if you get your way, you won't be able to do this anymore." While the conversation took place during the course of an organizing campaign, the specific context in which it arose, as well as the reference which Ferreira was making, render the state- ment vague and ambiguous. Accordingly, I would not, as did the General Counsel, conclude that the statement amounts to a threat to discharge or transfer an employee because of his union activities and would dismiss this por- tion of the complaint. C. The Discharges of Douglas Goranson and John "Chip" Williams There is no doubt that Williams generated the organizing drive and that he and Douglas Goranson, among others, went to the union hall, obtained union authorization cards, signed cards, and distributed them to other employees. There is also no doubt that the Respondent was well aware of the union activities of both employees. Charlie Lupus and Ferreira discussed the fact that Williams was the leader of the movement, andd both branded him a troublemaker. Charlie Lupus informed Douglas Goranson on the occasion of his layoff that he would be able to return "as soon as this Union thing goes through," a remark which indicates com- pany knowledge of his activities. Ferreira also told Charlie Lupus that the projected vote at the representation election would be five to five, a remark which suggests knowledge, or at least a strong suspicion on his part, as to which em- ployees were prounion and which were not. The layoffs of these two prounion employees took place within 3 weeks of the filing of a representation petition and a week before the election. The layoff, characterized by the Respondent in its brief as a permanent layoff,6 took place against a back- ground of independent violations of Section 8(a)(l), noted above. Normally, a combination of the factors of union activity, company knowledge. suspicious timing, and independent violations of the Act are sufficient to make out a case of a discriminatory discharge or layoff. Faced with these ele- ments in this case, the Respondent argues that the layoffs in question were prompted solely by economic considerations and that the two alleged discriminatees were selected for layoff because they held the least seniority. The General Counsel and the Respondent entered into a stipulation to the effect that as of January 1, 1978, the net worth of the Respondent was approximately zero and that the Respon- dent had a bona fide economic justification for laying off two employees. The stipulation did not recite that the Re- spondent had a bona fide economic justification for laying off two employees in the warehouse, and the record of this case is replete with the names of other persons who were either laid off or discharged in various parts of the Respon- dent's organization at or about the time Douglas Goranson and Williams were terminated. On the day they were noti- fied of their layoff, Williams and Douglas Goranson had loaded a truck and were ready to go out and make deliver- ies but were instructed to remain in the warehouse to await further orders. On this same date, their immediate supervi- sor asked Ferreira to lay off two others in place of the dis- criminatees in this case, and his recommendation was ig- nored. Ferreira disclosed in a statement to Richard Goranson some time before January 4 that Williams was slated for discharge because of his union activities. Douglas Goran- son was told, in effect, by Charlie Lupus on the occasion of his discharge that it was occasioned by his union activities. Evidence of illegal motivation is rarely clearer than in state- ments such as these. Accordingly, I conclude that by dis- charging Douglas Goranson and John Williams because of their union sympathies and activities the Respondent herein violated Section 8(a)(1) and (3) of the Act. Since both indi- viduals were employees entitled to vote at the January 12 election, the challenges to their ballots should be overruled and their ballots should be opened and counted. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CON(l.tlSIONS OF LAW 1. The Respondent. Concord Furniture Industries Inc., d/b/a Bradford Furniture Company, is an employer en- gaged in commerce within the meaning of Sections 2(2), (6). and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 82, is a la- 6 Several months later. Douglas Goranson was offered his job back. 648 CONCORD FURNITURE INDUSTRIES INC. bor organization within the meaning of Section 2(5) of the Act. 3. By permanently laying off Douglas Goranson and John Williams because of their membership in and activi- ties on behalf of International Brotherhood of Teamsters, Chauffeurs. Warehousemen, and Helpers of America, Local 82, the Respondent violated Section 8(a)(3) of the Act. 4. By the acts and conduct set forth in Conclusions of Law Number 3; by coercively interrogating employees con- cerning their union activities; by promising benefits to em- ployees in order to persuade them to reject unionization; by telling employees that other employees were going to be discharged because of their union activities; and by telling employees that they were being discharged because of their own union activities, the Respondent herein violated Sec- tion 8(a)(l) of the Act. 5. The unfair labor practices received above in Conclu- sions of Law 3 and 4 have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend to the Board that it be ordered to cease and desist therefrom and to take other actions designed to effectuate the purposes and poli- cies of the Act. Since the violations of the Act which have been found in this case are deliberate and involve discrimi- natory discharges or layoffs, they go to the heart of the Act. Accordingly, I will recommend a so-called broad 8(a)(l) remedy designed to suppress any and all violations of that section of the Act. J.C. Penney Co., Inc., 172 NLRB 1279, fn. 1 (1968). I will also recommend that the Respondent be required to offer full and immediate reinstatement to Doug- las Goranson and John Williams to their former or substan- tially equivalent positions and that it make these individ- uals whole for any loss of pay they have suffered, in accordance with the Woolworth formula,7 with interest thereon calculated at the adjusted prime rate used by the U.S. Internal Revenue Service for tax payments. Florida Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 will also recommend that the Respondent be required to post the usual notice informing its employees of their rights and of the results of this case. Upon the foregoing findings of fact, conclusions of law, and the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER' The Respondent, Concord Furniture Industries Inc.. d/b/a Bradford Furniture Company, West Concord, Mas- sachusetts, its officers, agents, supervisors, successors, and assigns, shall: F W. Woolworth Company. 90 NLRB 289 (1950). a In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sentiments and activities. (b) Promising benefits to employees if they reject union- ization. (c) Telling employees that they or other employees are or will be discharged because of their union activities. (d) Discouraging membership in or activities on behalf of International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America. Local 82, or any other labor organization, by discharging or laying off em- ployees or by any other discrimination in wages, hours, or terms and conditions of employment. (e) By any other means interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer Douglas Goranson and John Williams full and immediate reinstatement to their former positions or, in the event that their former positions no longer exist, to substan- tially equivalent employment, without prejudice to their se- niority or to other rights which they formerly enjoyed. (b) Make whole Douglas Goranson and John Williams for any loss of pay or benefits which they have suffered by reason of the discriminations found herein, in the manner described above in the section entitled "The Remedy." (c) Post at its West Concord, Massachusetts, store and warehouse copies of the attached notice marked "Appen- dix."9 Copies of the Appendix, to be furnished to the Re- spondent by the Regional Director for Region I and duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll and other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that Case I -RC- 15504 be, and it hereby is, severed from Case -CA-14058 and that it be, and it hereby is, remanded to the Regional Director; that the challenges to ballots cast in a representation election conducted in said case on January 12, 1978, be, and they hereby are, overruled; and that the Regional Director be, and he hereby is, directed to open and count said chal- lenged ballots and to prepare and serve upon the parties a revised tally of ballots. IT IS FURTHER ORDEREI) that, insofar as the complaint herein alleges matters not found to be violative of the Act, the said complaint is hereby dismissed. 9 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 649